In June 2019 the National Council of the Swiss Parliament - again - rejected a draft bill designed to introduce clear rules and procedures for whistleblowers in the private sector. While politicians cannot reach a consensus as to what level of protection is necessary for employees and what rules and restrictions should be in place for private businesses, the legal situation for whistleblowers in Switzerland remains unresolved.
However, despite the failure of the draft bill, companies cannot afford to adjourn the issue. They must prepare their organization to adequately deal with whistleblowing, especially in the present era of social media. In this Newsletter we will outline a) what the current law requires of employees who wish to report a misconduct or irregularity and b) name the key provisions employers should put in place to avoid exposure and liabilities.
What is the process for reporting a misconduct or irregularity?
Under the current legal regime whistleblowing in the private sector is still governed by the general rules and principles of Swiss employment law, company law, criminal law and data protection law. Following case law of the Federal Supreme Court, an employee must effectively respect a three-step process if he or she wishes to report a perceived wrong:
The employee must raise the issue or irregularity with the employer directly and thereby observe any internal rules or guidelines that were put in place. Contractual loyalty and confidentiality obligations require the employee to exhaust all internal means of reporting prior to contacting and releasing information to authorities or the public. Reporting to official authorities is permissible only if there is a public interest in the disclosure that overrides the employer's interest in keeping unlawful conduct confidential. Disclosing information to the public is only permissible if the notified authorities fail to take action. In sum, the situation for whistleblowers in the private sector is not easy: There are no incentives offered for persons who report suspected misconduct. The onus to respect the escalation process and to ensure proportionality of his or her actions is on the whistleblower.
Also, there is no specific protection afforded to whistleblowers in comparison to other employees and unlike in the public sector no official reporting point exist. Hence, under the existing law, whistleblowers must be highly intrinsically motivated and risk dismissal when...